The Nelson Mandela Foundation has approached the Equality Court seeking an order declaring that the public display of South Africa’s apartheid-era flag constitutes unfair discrimination, hate speech and harassment. AfriForum argues that banning the old flag could set a bad precedent. Jennifer Bruce
A robust debate on the display of the old official flag of the apartheid regime is expected to rage on today.

The Nelson Mandela Foundation will ask the Equality Court in Johannesburg to declare that gratuitous displays of this old flag constitute hate speech and discrimination based on race, thus being prohibited by the Equality Act.

A dispute arose between the foundation and lobby group AfriForum concerning displays of the flag, which was abolished on April 27, 1994.

AfriForum countered that even gratuitous displays of the old flag were protected by the right to freedom of expression. AfriForum discouraged its members from displaying the flag as it was “unwise”, and as such acts offended some people, but it felt it should not be unlawful as it was part of history.

The foundation said it appreciated the importance of history and memory, especially in a country still healing, and the right to expression, but the flag belonged in museums and should not be on public display.

Foundation chief executive Sello Hatang said in an affidavit gratuitous displays of the old flag did nothing to advance social justice and human dignity. In fact, they did the opposite.

It was widely reported that the old flag was displayed during the Black Monday demonstrations against farm murders in 2017.

Hatang said he was told about this while giving a tour of Robben Island, and painful memories of how he was treated as a child because of the colour of his skin came back to him, “as this flag represents nothing but the inhumane system of racial segregation”.

Hatang said he met AfriForum chief executive Kallie Kriel at the time about the issue. Kriel’s opinion was that banning the old flag would be the same as banning communist symbols.

“I argued that not only public displays, but even private displays (at home) were offensive,” Hatang said.

In its application, the foundation argued displays of the old flag could not be protected by the Constitution or defended in the name of tolerance.

The Equality Court had the power to mete out remedies for behaviour that undermined equality, such as apologies, community service and sensitivity training, said Hatang.

The SA Human Rights Commission (SAHRC) will apply to join the application. It argues that the Equality and Prevention of Unfair Discrimination Act provides that words which constitute hate speech must be prohibited. As the old flag is a symbol and not words, it is challenging the constitutionality of the legislation.

The SAHRC argued it was difficult to interpret “words” so broadly as to include display of a flag.

It said hate speech should thus not be restricted to words, but should include all forms of expression which were hurtful and propagated hatred.